Mays' Estate

• Decision Date: 02 October 1940
• Docket Number: 10-1940,11-1940,21-1940,14-1940,9-1940,17-1940,19-1940,20-1940,18-1940,13-1940,23-1940,27-1940,24-1940,12-1940,22-1940,16-1940,15-1940
• Parties: Mays' Estate
• Court: Pennsylvania Superior Court

15 A.2d 569

141 Pa.Super. 479

Mays' Estate

Nos. 9-1940, 10-1940, 11-1940, 12-1940, 13-1940, 14-1940, 15-1940, 16-1940, 17-1940, 18-1940, 19-1940, 20-1940, 21-1940, 22-1940, 23-1940, 24-1940, 27-1940

Superior Court of Pennsylvania

October 2, 1940

Argued April 16, 1940.

Appeals from decree of O. C. Venango Co., April T., 1937, No 24, in Estate of Edward W. Mays, deceased.

Proceeding upon exceptions to report of auditor appointed to make distribution of the funds of the decedent's estate.

The facts are stated in the opinion of the Superior Court.

Exceptions to report of auditor dismissed and report confirmed absolutely, opinion by McCracken, P. J. Exceptants appealed.

Errors assigned, among others, related to the action of the court below in dismissing the exceptions.

Decree affirmed.

Samuel N. Mogilowitz, of Skelly & Mogilowitz, with him G. G. Martin for appellants.

Donald Glenn, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Rhodes, J.

Edward W. Mays, a resident of Rockland Township, Venango County, Pa., died intestate on September 4, 1936, at the age of 80 years. In the application for letters of administration upon his estate it was stated that he was unmarried. In the course of administration of his estate his administrator was notified of the existence of an alleged son, George J. Mays, the appellee herein, and therefore moved in the Orphans' Court of Venango County for the appointment of an auditor to make distribution of the funds of the estate. The auditor in his report found as a fact that George J. Mays was the legitimate child of the decedent and Mary Gormley Mays, and made conclusions of law that he was the decedent's sole heir at law and entitled to the entire estate. The collateral relatives of the decedent filed exceptions to the report, which were dismissed by the orphans' court, and the auditor's report was confirmed absolutely. They have appealed, and assign as error the dismissal in the court below of their exceptions not only to the finding and conclusions above referred to, but also to the finding that Mary Gormley and decedent were husband and wife and the conclusion of law that she was his lawful wife.

The evidence presented before the auditor can be summarized as follows: The decedent had two brothers; Henry, who predeceased him, and Horatio, who survived him. He had five sisters, of whom two survived him. These surviving sisters and brother all testified before the auditor to the effect that to their knowledge the decedent had never married. They testified also that, with the exception of part of the year 1890, he had lived all his life with his own parents or had made a common home with his unmarried sister and either of his brothers in Rockland or Franklin, Pa. S. B. Babcock, Esq., a member of the Bar of Venango County, attorney for the administrator, who, during the last eight years of decedent's life, had been guardian of his estate, testified that he had never heard of the existence of any reputed child of decedent until after his death.

It was, however, admitted by appellants that during 1890 the decedent and his brothers left Rockland and worked at the drilling of oil wells in the vicinity of Murrinsville, Butler County, Pa., and that there they boarded at the farm homestead of Neil or Cornelius Gormley. Two of the daughters and two of the sons of Gormley appeared before the auditor. They variously testified that their deceased sister Mary had met the decedent at their home in 1890, in the summer of 1891 had told her sister she was planning to marry him, left home alone in August, 1891, and returned in the spring of 1892 with decedent and a baby a few weeks old, the present appellee; that in answer to her father's inquiry the couple declared they were married and the child was their son; that they remained at the farm until fall, occupying the same room, and addressed each other as husband and wife; that he referred to the baby as his; that the decedent's brother, Horatio, visited at the farm and saw his brother, the mother, and child that summer; that Mary Gormley told her sister they had been married at Lawrenceville, Pa., and the child born on Butler Street in Pittsburgh near the end of April, 1892; that the couple and the child left the farm that fall to go to Sharpsburg, Pa., or Pittsburgh, but lived thereafter at Sharpsburg and Etna, Pa., where one of the witnesses visited them, and they had a second son who died in infancy and was buried at Parker; that the mother and child moved to Pittsburgh without the decedent, and lived apart from him thereafter; and that the mother claimed the name Mays until her death. The baptismal record of St. Mary's Church, Sharpsburg, Pa., was offered on behalf of appellee and was received, evidencing the baptism on July 18, 1893, of a child George, born October 5, 1892, at Etna to Edward "Mayes" of "Rockide," Pa., and "Maria Gormily" of "Marrinsville, Pa."

On this evidence the auditor made the findings of fact and conclusions of law above referred to, and also a conclusion of law that the decedent and Mary Gormley had not contracted a common-law marriage, so that his determination that the appellee was the decedent's legitimate son depends exclusively on the sufficiency in law of the evidence (1) of the decedent's paternity, and (2) of a ceremonial marriage between decedent and appellee's mother.

It is true, as appellants point out, and as the Supreme Court said in Hirst's Estate, 274 Pa. 286, 117 A. 682, that claims against a dead man's estate, which might have been made against him while living, are always subjects of just suspicion, and are faced with the necessity of strict requirement of proof. It may also be conceded that one who seeks to establish relationship to a person already dead has a heavy burden of proof.

In the instant case appellee had the burden of proof of his relationship to the decedent, that is, the decedent's paternity, apart, primarily, from any question of his own legitimacy. This is made clear by Pickens' Estate, 163 Pa. 14, 29 A. 875. That case arose on exceptions to an auditor's report on distribution of the estate of a decedent whose mother, previous to marriage with his father, had lived with another man by whom she had a son who became the father of the claimant. The Supreme Court said (p. 20): "In this case the burden of proof, to establish his relationship to the decedent was upon the appellant, but he was not confronted with the presumption of the illegitimacy of his ancestor, and not required to disprove it. In the absence of all evidence the presumption was the other way, and after this lapse of time could not have been removed except by clear proof." Appellee had the burden of proving himself the son, whether or not legitimate, of Edward W. Mays, the decedent. But in our opinion, after a careful review of the record, it cannot be said that the appellee did not sustain this burden. There was evidence which, if believed, showed the decedent frequently to have acknowledged the child as his own over a period of months while living in the parental home of the child's mother. The baptismal record offered in evidence bore what appeared to be the names of the decedent and appellee's mother as his parents, together with what appeared to be the names of their respective birthplaces, Rockland and Murrinsville. The testimony of at least one of the witnesses, appellee's aunt, Mrs. Martha E. Kelly, places the residence of his mother and the decedent at Sharpsburg, Pa., where this baptismal record was found, at or near the time it indicates the baptism to have been administered. Undoubtedly there are discrepancies in the proof, for example, the date of birth stated in the baptismal certificate, as compared with the other testimony of appellee's witnesses, but the credibility and weight of the evidence are not for us to determine. The authorities are to the effect that where a claim is presented against a decedent's estate, the weight to be given the evidence is for the auditing judge, whose findings, based on consideration of the questions presented and not upon a capricious disbelief, will not be disturbed by the appellate court. Swoope's Estate, 317 Pa. 584, 586, 177 A. 748; Sailer's Appeal, 120 Pa.Super. 69, 72, 181 A. 854.

Appellee's kinship to decedent having thus been shown, it was not incumbent upon him to go further to prove his legitimacy; it was for the appellants to disprove it, and that by proof that was clear, direct, satisfactory, and irrefragable (Pickens' Estate, supra; McAnany's Estate, 91 Pa.Super. 317). In McAnany's Estate, supra, this court, speaking through Judge Cunningham, said (p. 321): "The presumption and charity of the law are in favor of the legitimacy of every child and whoever seeks to bastardize it must establish its illegitimacy by proof that is clear, direct, satisfactory and irrefragable." The issue there was whether the claimant's father, Patrick, was the legitimate half-brother of the decedent, Edward. His birth in Ireland 80 years previous and the identity of his mother alike were shrouded in mystery, but there was clear documentary evidence that he was the acknowledged child of John, the decedent's father. The auditing judge found him legitimate, and this court affirmed the lower court's dismissal of the exceptions to the finding, saying, in part (p. 322): "The learned and able counsel for appellant seek to distinguish this case by pointing out that there was evidence in the Pickens case that the mother had lived with Obenstein previous to her marriage to Pickens, but that there is no evidence that John McAnany ever lived with Patrick McAnany's mother. This is true, but it is equally true that there is...